What is difference in procedure for trial of civil suit before civil court and commercial courts?

 In India, the procedures for trial of civil suits before a regular civil court and those under the Commercial Courts Act, 2015, are distinct. The differences are mainly due to the nature of the disputes they handle and the procedural requirements aimed at expediting commercial litigation. Here’s a detailed comparison:

Civil Court Procedures (under the Code of Civil Procedure, 1908):

1. Nature of Disputes:

   • Civil courts handle a wide array of civil disputes, including property disputes, family matters, contract disputes, tort claims, etc.

2. Pleadings:

   • The plaint and written statement are filed with general requirements. There is some flexibility regarding amendments to pleadings.

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Important Judgments on imposition of property tax by Municipal Corporation

1)  Whether civil suit is maintainable to challenge assessment and levy of property tax on immovable property?

 10. A Division Bench of the Delhi High Court in Sobha Singh & sons (P) Ltd. vs. New Delhi Municipal Committee [34 (1988) Delhi Law Times 91] had an occasion to consider the question of maintainability of a civil suit challenging the assessment and levy of property tax by the NDMC. Sections 84 and 86 of the Act came in for consideration. It was held that the provision of appeal contained in Section 84(1) of the Act provided a complete remedy to a party aggrieved against the assessment and levy of tax. Section 86 provides that the remedy of appeal is the only remedy to a party to challenge assessment for purposes of property tax. No other remedy was available to a party in such circumstances. It follows that the remedy of civil suit is barred.

11. In view of the aforesaid position in law, we are of the considered view that the civil suit filed by respondent challenging the assessment and demand of property tax by the appellant was clearly barred. 

SUPREME COURT OF INDIA

Brijesh Kumar J.Arun Kumar J.

N.D.M.C. Vs. Satish Chand(deceased by LR Ram Chand

Appeal (Civil) 2700 of 1997

11th September 2003

Citation:  2003 ALL SCR 313,2003(4) Maharashtra Law Reporter 331.

https://www.lawweb.in/2021/11/whether-civil-suit-is-maintainable-to.html

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Whether the high court can treat suit or criminal case as pending before trial court if judgment was delivered on Roznama?

In the present case it is clear from the reports that though orally some judgments was pronounced on 14/01/2019 as quoted earlier and recorded in the Roznama, there is no such written judgment duly signed by the Presiding Officer is found in the file. The explanations were called from the concerned Presiding Officer by the Principal District and Sessions Judge. However, there is no satisfactory explanation coming forth. {Para 22}

27. Thus in sum and substance, there is no judgment and decree passed in the said civil suit by the learned Presiding Officer though recorded in the Roznama dated 14/01/2019. Such Roznama entry cannot be considered as judgment and decree as provided under the Code of Civil Procedure. For the reasons recorded by us in CrWP No. 578 of 2022 dated 06/10/2022, we are constrained to allow this petition as per the prayer clause 'a'.

28. Considering the above unfortunate facts and the submissions of the learned Counsel appearing for both the sides, the Roznama order dated 14/01/2019 in RCS No. 129 of 2010 is hereby quashed and set aside. Since there is no signed and dated judgment found on the record, we are unable to consider that the suit was disposed of on merit by the concerned Presiding Officer. Thus, we remand the said Civil Suit No. 129 of 2010 to the Civil Judge, Junior Division at Canacona with the direction that the suit be decided after hearing both the sides and in accordance with law within a period of three months from the date of the signed copy of this order is placed before it. It is made clear that both the parties shall co-operate with the learned Canacona Court in disposal of the said matter in the time frame fixed as above.

 IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 418 of 2022

Hemantkumar Sadanand Naik Gaonkar and Ors. Vs. Pio Rogerio Salem Cotta and Ors.

Hon'ble Judges/Coram:

M.S. Sonak and Bharat P. Deshpande, JJ.

Author: Bharat P. Deshpande, J.

Decided On: 02.01.2023.

Citation:  MANU/MH/0016/2023

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Under which circumstances the court must relegate parties to adoption petition to substantive suit?

  The civil court rejected the petition on two grounds firstly that the biological parents have taken objection for giving the child in adoption and secondly that adoption deed is not registered as per Section 16 of HAMA. As regards the rejection on the ground of absence of consent is concerned, as indicated above, the proper course would have been to relegate the parties to the remedy of substantive suit. In face of the objection raised by the biological parents, the issue could not be decided in summary manner as decided by the Civil Court in the Adoption Petition. The inquiry contemplated under the provisions of HAMA as regards the actual giving and taking of the child in adoption with the intent of transferring the child from the family of the biological parents to the family of adoptive parents was not conducted in the proceedings of Adoption Petition No 189 of 2021. The biological parents have disputed that the adoptive parents were present at the time of execution of the Deed of Adoption and it is their contention that the child was handed over to Ms. Julia of AHAM Foundation. Clause (vi) of section 11 of HAMA emphasizes give and take of child with intent to transfer the child from one family to another. The intention will have to be gathered from the conduct of parties at the time of actual give and take of the child which can be only conclusively proved after the evidence in that behalf has been led. In wake of the dispute being raised as regards the actual giving and taking of the child with intent to transfer the child from one family to another, evidence was required to be led.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Read full Judgment here: Click here.

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Whether Insolvency proceeding against a shipping company will bar a civil suit against its vessel?

The first argument canvassed by Mr. Arsiwala is that the present suit is not maintainable considering the bar contained in Section 33(5) of the IBC, 2016. 

22. What sub-section 5 of Section 33 of the IBC, 2016 contemplates is that subject to Section 52, when a liquidation order is passed against the Corporate Debtor, no suit or other legal proceeding shall be instituted by or against the Corporate Debtor. Section 52 deals with the rights of the secured creditor in liquidation proceedings. The proviso to Section 33(5) stipulates that a suit or other legal proceeding may be instituted by the Liquidator, on behalf of the Corporate Debtor, with the prior approval of the Adjudicating Authority. When one reads Section 33(5), it is ex-facie clear that the said provision prohibits the institution of a suit or other legal proceeding against the Corporate Debtor only. It does not in any way prohibit the institution of a suit or other legal proceeding against a ship/Vessel owned by the Corporate Debtor when invoking the Admiralty Jurisdiction of this Court. I say this because under the Admiralty Act, the Vessel is treated as a separate juristic entity which can be sued without joining the owner of the said Vessel to the proceeding. 

Bombay High Court

JUSTICE B. P. COLABAWALLA

Angre Port Private Ltd. Vs. TAG 15 (IMO. 9705550) & Anr.

INTERIM APPLICATION(L) NO. 112 OF 2021

3rd January 2022

Citation: 2022 NearLaw (BombayHC) Online 9

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Can a civil court entertain a suit if the plaintiff is pleading fraud without material particulars if it is barred as per S 34 of the SARFAESI Act?

 Having considered the pleadings and averments in the suit more particularly the use of word ‘fraud’ even considering the case on behalf of the plaintiff, we find that the allegations of ‘fraud’ are made without any particulars and only with a view to get out of the bar under Section 34 of the SARFAESI Act and by such a clever drafting the plaintiff intends to bring the suit maintainable despite the bar under Section 34 of the SARFAESI Act, which is not permissible at all and which cannot be approved.{ Para 8}

Supreme Court

JUSTICE M. R. SHAH JUSTICE SANJIV KHANNA

Electrosteel Castings Limited Vs. UV Asset Reconstruction Company Limited & Ors.

CIVIL APPEAL NO.6669 OF 2021

26th November 2021

Author: M. R. Shah, J.

Citation: 2021 ALL SCR (ONLINE) 697

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Whether civil suit is maintainable to challenge assessment and levy of property tax on immovable property?

 It will be noticed from the provisions contained in Section 9 of the Code of Civil Procedure that a bar to file a civil suit may be express or implied. An express bar is where a Statute itself contains a provision that the jurisdiction of a civil court is barred e.g., the bar contained in Section 293 of the Income Tax Act, 1961. An implied bar may arise when a Statute provide a special remedy to an aggrieved party like a right of appeal as contained in the Punjab Municipal Act which is the subject matter of the present case. Section 86 of the Act restrains a party from challenging assessment and levy of tax in any manner other than as provided under the Act. A provision like this is the implied bar envisaged in Section 9 C.P.C. against filing a civil suit.  {Para 7}
8. Munshi Ram and Others vs. Municipal Committee, Chheharta [1979 (3) SCR 463] was a case under the Punjab Municipal Act itself. The Court was considering the question of bar created under Sections 84 and 86 of the Act regarding hearing and determination of objections to levy of provisional tax under the Act. In this connection it was observed:
"From a conjoint reading of sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under the Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment. The Act further provides a particular forum and a specific mode of having this remedy which analogous to that provided in Section 66 (2) of the Indian Income-tax Act, 1922. Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.
It is well recognised that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded.
Construed in the light of this principle, it is clear that sections 84 and 86 of the Municipal Act bar, by inevitable implication, the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act."
9. The Court upheld the objection regarding maintainability of the civil suit.
10. A Division Bench of the Delhi High Court in Sobha Singh & sons (P) Ltd. vs. New Delhi Municipal Committee [34 (1988) Delhi Law Times 91] had an occasion to consider the question of maintainability of a civil suit challenging the assessment and levy of property tax by the NDMC. Sections 84 and 86 of the Act came in for consideration. It was held that the provision of appeal contained in Section 84(1) of the Act provided a complete remedy to a party aggrieved against the assessment and levy of tax. Section 86 provides that the remedy of appeal is the only remedy to a party to challenge assessment for purposes of property tax. No other remedy was available to a party in such circumstances. It follows that the remedy of civil suit is barred.
11. In view of the aforesaid position in law, we are of the considered view that the civil suit filed by respondent challenging the assessment and demand of property tax by the appellant was clearly barred. 

SUPREME COURT OF INDIA

Brijesh Kumar J.Arun Kumar J.

N.D.M.C. Vs. Satish Chand(deceased by LR Ram Chand

Appeal (Civil) 2700 of 1997

11th September 2003

Citation:  2003 ALL SCR 313,2003(4) Maharashtra Law Reporter 331.

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When will the civil court have jurisdiction to entertain a suit relating to property tax?

  This makes it clear that the Act does not contemplate any valuation or assessment of any building for the liability to tax unless entry with regard to the same is made in the assessment list and the assessment list is prepared after following the prescribed procedure in sections 114 to 1 22 of the Act, issuance of the notice such as the one dated 23-10-1967 without being backed by the list of assessment required to be prepared cannot, in our opinion, create any legal liability to pay the tax. Imposition, levy and collection of taxes are three different stages. The power to collect tax does not come into existence merely by imposing the same. Liability to pay the tax can only arise, as is held in several cases of the highest Court, when the assessment list is prepared after giving the assesses enough opportunity to inspect the same and have their say in the matter. The procedure contemplated under the provisions of sections 114 to 122 furnishes some guarantee to the citizens against the excesses or arbitrariness of the officer to the assessee before the liability is imposed on them.

11. It is also difficult for us to attach any importance to the order dated 16-2-1968 on which reliance was placed by Mr. Deo because the same has not shown to have been passed after giving an opportunity to the plaintiff, respondent and secondly, because the same does not appear to have been based on any assessment list as such prepared after following the procedure prescribed under the Act. As indicated earlier, the plaintiff specifically pleaded in the plaint that assessment list was not prepared and not published and that his objections to the notice dated 23-10-1967 were not investigated in his presence, after giving an opportunity to him of hearing. The defendant could not produce any record at the trial to prove that, in fact any such hearing was given to the plaintiff.

13. On our finding it is difficult for us to hold that defendant's case is merely of an irregular exercising the power to tax preparation of the valid assessment list being the foundation of the debt of tax by the citizens to the Municipality. It is not enough that the Municipality possesses the power to impose the tax, but it must also legally levy tax and collect the same. Any lack of jurisdiction on the part of the Municipality in the matter of levy and collection is liable to be questioned in the Civil Court. As discussed earlier, it is difficult for us to hold that the calculation made in the bill amounted to valuation, assessment or levy under the provisions of the Act. No liability having arisen in the present case, the defendant was not legally entitled to recover any money from the plaintiff. The Civil Suit, therefore, in our opinion is perfectly maintainable and the bar of section 172 cannot arise in the present case. 

Bombay High Court

Municipal Council vs Shivaji Sindhi Co-Op. Hsg. ... on 15 April, 1980

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When the civil suit is maintainable even if the appeal is provided against the order of the revenue officer?

 A simple answer to the plea is that in the first place it is extremely doubtful whether an appeal would lie against the notice issued by the Talathi. The notice is illegal on the face of it for a number of reasons. But it is doubtful as to whether it is appealable. In the second place, even assuming that the appeal lay against the said notice, it is not incumbent upon the plaintiff to file the appeal at all. As will be presently pointed out the notice is illegal on the face of it and it is unconstitutional because it amounts to recovery of tax without the authority of law. Article 265 of the Constitution provides that no tax shall be levied or collected except by authority of law. As has been held by the Court below and as will be pointed out by me presently the notice in question is devoid of any authority of law. An un-constitutional order passed by any officer of the Government need not be appealed against, because the appellate authority with special and limited jurisdiction will not have the authority to decide whether its own acts or the acts of its subordinate are ultra vires the statute or the Constitution. The Civil Court's jurisdiction in such cases to entertain a suit for declaration that the act is illegal and ultra vires the statute and/or the Constitution is always held to be quite competent.

Bombay High Court

State Of Maharashtra vs Nargis B. Mewawala (Mrs.) on 27 June, 1986

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Whether civil suit challenging the valuation, assessment or levy, or liability of any person to be assessed or taxed for property tax is maintainable?

  In Bata Shoe Company's case, the Supreme Court, which was dealing with Section 84(3) of C.P. and Berar Municipalities Act, which is in pari materia with the provisions of Section 172 of the Maharashtra Municipalities Act, held that Section 84(3) of C.P. and Berar Municipalities Act expressly prohibits challenge to a valuation, assessment or levy, "in any other manner than provided in the Act" and since the Act has devised its own special machinery for enquiry into and adjudicating upon such challenges, the common remedy of a suit stands necessarily excluded and cannot be availed of by a person aggrieved by order of assessment to octroi duty. It was observed by the Supreme Court in this case that since the special machinery was devised for enquiry and adjudicating upon the duty of the tax, the common remedy of suit stands necessarily excluded and cannot be availed by a person aggrieved by the order of assessment. The octroi collected by Municipal Committee of Jabalpur on the goods imported by Bata Shoe Company was subsequently sought to be revised. It was revised and was paid by Bata Shoe Company and further, having paid such revised octroi duty, a suit was filed questioning the legality of refund or opening of the octroi already paid. It was held that the Municipal Committee had jurisdiction to reopen the cases to collect the tax. {Para 6}

7. The Supreme Court interpreted Section 84(3) of the C.P. and Berar Municipalities Act and held that such challenge to the valuation, assessment or levy could not be raised by filing a suit. It was observed by the Supreme Court that the decision of the Municipal Committee could not be said to be without jurisdiction. The case in Bharat Kala Bhandar Vs. Municipal Committee, Dhamangaon, reported in (1965)3 SCR 499 was distinguished by the Supreme Court, in which it was held that the action on the part of the Municipal Committee was unconstitutional. In Bharat Kala Bhandar's case, a suit was filed for recovery of excess tax paid by the plaintiff under Section 66(1)(b) of the Central Provinces Municipal Tax Act, 1922 on the ground that after coming into force of Section 142-A of the Government of India Act, 1935, till January 25, 1950, a tax in excess of Rs.50/- p.a. could not be imposed by the Municipal Committee. It was held in that case that the Municipal Committee had acted unconstitutionally as it was not entitled and it had no jurisdiction to collect tax in excess of Rs.50/-, as laid down under the provisions of Section 142 of the Government of India Act.

8. Thus, in Bata Shoe Company's case, the Supreme Court held that Section 84(3) of C.P. and Berar Municipalities Act expressly prohibited a challenge to the valuation, assessment or levy in any other manner than provided in the Act and since C.P. and Berar Municipalities Act has devised its own special machinery for enquiring into and adjudicating upon such challenges, the common remedy of a suit stood necessarily excluded and could not be availed of by person aggrieved by order of assessment. It was further held that Section 84(3) excluded expressly the power of any other authority than is provided in this Act to entertain an objection to any valuation, assessment or levy of octroi/tax. The provisions of Section 84(3) of C.P. and Berar Municipalities Act, as stated earlier, is in pari materia with Section 172 of the Maharashtra Municipalities Act and, therefore, the suit challenging valuation, assessment or levy of tax cannot be filed. The remedy provided under Section 169 of the Act i.e. filing of appeal before Magistrate and revision against the order of Magistrate will have to be availed of.

9. While deciding the aforesaid Bata Shoe Company's case, the Supreme Court did not disapprove the principles laid down in Bharat Kala Bhandar's case, wherein it was held that the act of the authority was unconstitutional and without jurisdiction, separate suit lay against it. In the case in hand, it is not the case of the plaintiff that the act of Municipality in imposing the tax was unconstitutional or without jurisdiction. On the contrary, the case of the original plaintiff was that the imposition of tax was exorbitant, unreasonable and that the procedure laid down under the Act was not followed. By applying the ratio laid down in Bata Shoe Company's case, this Court has, thereafter, in number of cases, held that the challenge to the procedure relating to the levy of any tax and assessment of the property for the purpose of tax amounts to challenge the assessment itself. When the plaintiff challenges the assessment on the basis that the provisions of the Act had not been correctly appreciated or followed and the tax was levied on the property without any basis, it is nothing but challenging to the assessment itself. It has been held by this Court in the case of Chief Officer, Sangamner Municipal Council Vs. Narayandas Jagannath Karwa (supra) that in such cases the bar under Section 172 of the Act will operate in respect of challenge to assessment on the ground of non-compliance of the Rules or of denial of principles of natural justice and of malice. This has been the consistent view of this Court. This Court, in Gandhi Agencies, Barshi Vs. Municipal Council, Barshi (supra), held that the suit for injunction seeking to restrain the Municipal Council from recovering octroi so as to include amounts allowed as discount in the invoice could only be challenged by way of appeal and revision and that jurisdiction of civil court to try suit is barred. This Court, by another judgment in the case of Ulhasnagar Municipal Council Vs. Arjun Kungooram Balani (supra), held that challenge to demand of Municipal for recovery of taxes by civil suit claiming declaration and injunction was barred under Section 172 of the Maharashtra Municipalities Act and that civil court had no jurisdiction. It was further held that the remedy lies by way of appeal under Section 169 of the Act before the Judicial Magistrate.

10. There is no dispute that in that case the plaintiff, who owned houses within the area of Municipal Council, Aurangabad, was issued with the bills in respect of the house, claiming consolidated property tax and that the original plaintiff, respondent herein challenged this saying that the tax was exorbitant, unreasonable and that the procedure laid down in the Act was not followed. It was never the case and was not shown that the Maharashtra Municipality Act was unconstitutional or without jurisdiction. What was stated was the procedure elapses and that could not be challenged in view of the Supreme Court's ruling in many cases, some of which have been cited in the foregoing paragraphs.

11. The defendant, in its written statement, had taken a plea of bar of civil suit. Both the courts below have erroneously held that the suit was not barred under Section 172 of the Maharashtra Municipalities Act. This Court, after careful consideration of the cases cited by learned counsel for the appellant, and for the reasons recorded in the foregoing paragraphs, holds that the civil suit challenging the valuation, assessment or levy or liability of any person to be assessed or taxed, cannot be questioned by filing suit and that it can be challenged in the manner provided in the Act itself.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

A.S. BAGGA, J.

Municipal Corporation, Aurangabad Vs. Shaikh Mohammed S/O. Shaikh Yusufsaheb

Second Appeal No.195 of 1984

5th March, 2004

Citation: 2004(3) ALL MR 532

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Whether revenue authorities have jurisdiction to decide the issue of the genuineness of will during mutation proceeding?

                   If an application under Section 110 of MPLR

       Code is filed for mutation of the name of all the legal

       heirs, then it would certainly be a proceeding under the

       MPLR Code because the question of title is not

       involved and all the legal heirs of the deceased/owner

       will be brought on record without any further

       adjudication but whether the adjudication of the title of

       the parties on the basis of a ''Will'' can be said to be a

       proceeding under the Act or not, is a moot question

       which requires consideration.

      

      (26) It is well-established principle of law that the

      burden is on the propounder of the ''Will'' to prove that

      the ''Will'' was executed in his favour by the testator.

      Even if the ''Will'' is not challenged by anybody, but

      still the propounder of the ''Will'' has to discharge his

      burden and no decree can be passed even by the Civil

      Court merely on the ground that the respondents have

      chosen not to appear before it or have failed to file their

      written statement as provided under Order 8 Rule 10

      CPC.”

9.    Further, the similar view which was taken by this Court on the

earlier occasion has also been affirmed by the Division Bench of this

Court in the Writ Appeal in the case of Murari (supra). Thus, it is

clear that the revenue authorities have no jurisdiction to decide the

correctness and genuineness of a “Will” and if the propounder of the

“Will” wants to take advantage of the “Will”, then he has to get his

title declared from the Civil Court of competent jurisdiction.

       

            THE HIGH COURT OF MADHYA PRADESH

                    Writ Petition No.6695/2013

               Smt. Ramkali Vs. Banmali and another

Gwalior, Dated :17/02/2021

     

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Whether filing of civil suit for defamation amounts to violation of freedom of speech and expression?

In my view there is merit in the plea of the plaintiff's counsel. Article 19(2) is a negative covenant i.e., a bar on the restrictions imposable upon the otherwise unfettered right of freedom of speech and expression, guaranteed by Article 19(1)(a) of the Constitution. There is no requirement or restriction in Article 19(2) that unless and until permitted by Article 19(2), no suits for defamation can be filed, as contended and in my view erroneously by the learned senior counsel for the defendant,Shri Tripathi. To accept Mr. Tripathi's plea would tantamount to rewording the Constitution. A plain reading of the Constitution makes it clear that at present there is no fetter/bar on filing of suits based on defamation and therefore the plea of theefendant under Order VII Rule 11 that the suit is barred by any law i.e., Article 19 as the Parliament has not enacted any law permitting suits for defamation is not tenable and is accordingly rejected. There is also substance in the plea of the plaitiff's counsel that Section 9 of the CPC permits the trial of all civil suits unless expressly or impliedly barred. Admittedly there is no express bar against suits for defamation. The plea of the implied bar under Section 9 by virtue of the non-enactent of a statute under Article 19(2) permitting defamation suits has already been rejected. Consequently the suit is also maintainable under Section 9 CPC.

 Delhi High Court

Ashoke Ghosh vs Urmi A. Goswami on 7 January, 2005

Bench: M Mudgal

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Leading Supreme Court Judgment on legal consequences of filing of premature suit

We may now briefly sum up the correct position of law which is as follows :

A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason.

The question of suit being premature does not go to the root of jurisdiction of the Court; the Court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the Court to grant decree or not. The Court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the Court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in the following cases : (i) When there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the Court's jurisdiction, and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See : Samar Singh v. Kedar Nath and Ors. - MANU/SC/0386/1987 : AIR1987SC1926). One more category of suits which may be added to -- where leave of the Court or some authority is mandatorily required to be obtained before the institution and was not so obtained.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2390 of 2002

Decided On: 11.03.2005

 Vithalbhai Pvt. Ltd.  Vs.  Union Bank of India

Hon'ble Judges/Coram:

R.C. Lahoti, C.J. and G.P. Mathur, J.

Author: R.C. Lahoti, C.J.

Citation: (2005) 4 SCC 315, AIR 2005 SC 189, MANU/SC/0195/2005

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Whether criminal prosecution for forgery is tenable if an issue as to the genuineness of those documents is pending in civil suit?

Be that as it may, in the Summary Suit No. 105/2015, leave to defend was granted to Respondent No. 2-Mahendrakumar on 19.04.2016. On the application filed by Appellant No. 3 in the said Summary Suit No. 105/2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of Respondent No. 2-Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No. I-194/2016 was registered on 28.12.2016 against the Appellants for the offences punishable Under Sections 406, 420, 465, 467, 468, 471 and 114 Indian Penal Code. As rightly contended by the learned Counsel for the Appellants, in the Summary Suit No. 105/2015, issue No. 5 has been framed by the Court "whether the Defendant proved that the Plaintiff has fabricated the forged signature illegally and created forged receipts". When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit.

19. It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the Plaintiff-Appellant No. 3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No. I-194/2016, in our view, would amount to abuse of the process of Court and the petition filed by the Appellants Under Section 482 Code of Criminal Procedure in Criminal Misc. Application No. 2735/2017 to quash the FIR I-194/2016 is to be allowed.

Ratio: When issue as to genuineness of documents, forgery of which was the basis of the criminal proceedings, was pending consideration in civil suit, FIR ought not to have been allowed to continue in this case as it would prejudice the interest of parties and the stand taken by them in the civil suit. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 251-252 of 2020 

Decided On: 10.02.2020

 Rajeshbhai Muljibhai Patel  Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:

R. Banumathi and A.S. Bopanna, JJ.

Citation: MANU/SC/0155/2020,(2020) 3 SCC 794

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Whether composite appeal against decree passed in suit and counter claim is maintainable?

 Now coming to the judgment of the Apex Court in Narhari and others' case (supra), the Apex Court in paragraph 5 has observed that It is now well settled that where there has been one trial, one finding and one decision, there need not be two Appeals even though two decrees may have been drawn up. The observation of the Apex Court in Narahari's case therefore applies in all fours to the facts of the instant case wherein there was one trial, one finding and one decision as regards the property and therefore the Appellants were not required to file separate Appeals. In so far as the judgment of a learned Single Judge of the Kerala High Court in Pampara Philip's case is concerned, though the said judgment is not directly on the point as to whether one Appeal is maintainable, the Appellants can draw support from the said judgment in the light of the fact that the learned Single Judge of the Kerala High Court has held that if the claim in the counter claim is dismissed and the suit claim is allowed, then there is no warrant to file two Appeals but what is required to be done is that the valuation has to be composite i.e. the valuation of the suit and counter claim, and court fees have to be paid accordingly. In my view, the judgment lends support to the case of the Appellants inasmuch as in the instant case also the suit claim has been allowed and the counter claims have been dismissed.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4658 of 2013

Decided On: 10.12.2014

 Shankar Masu Dokare  Vs.  Shobha Subhash Dokare

Hon'ble Judges/Coram:

R.M. Savant, J.

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When court should not permit joint trial of civil suit and probate proceeding?

Court refused to order joint trial of a probate proceeding and a civil suit dealing with one of the properties mentioned in the Will inasmuch as it found that there was no challenge to the Will in the suit, and the challenge was only to the status of the property and the right of the testator to bequeath the same.

A reading of the above would clearly show that the petitioner infact accepted the execution of the Will by the testator. In view of the above, there will be no commonality of issues or evidence between the probate petition and the suit, especially when the Issue no. 4 framed in the probate petition by the order dated 31.10.2019 stands deleted by the subsequent order dated 07.03.2020.

9. The learned counsel for the petitioners has placed reliance on the judgments of the Supreme Court in Balbir Singh Wasu vs. Lakhbir Singh and Others, (2005) 12 SCC 503, and Nirmala Devi vs. Arun Kumar Gupta and Others, MANU/SC/3236/2000 : (2005) 12 SCC 505 to contend that in a similar circumstance the Supreme Court had directed the probate proceedings and the Civil Suit to be tried by the same Court. He further places reliance on the order dated 29.01.2013 passed by this Court in TR.P. (C) 20/2012 titled Sanjay Arora and Ors. vs. Sudhir Kumar Arora and Ors., as also of the order dated 10.01.2017 of this Court in TRP. (C) 127/2019 titled Ajay Kumar Gupta & Anr. vs. Roopa Gupta, to contend that even this Court has ordered transfer and joint trial of probate proceedings and Civil Suit.

10. In the peculiar facts of the present case, I am not persuaded by the arguments of the learned counsel for the petitioners. In the present case, as noted hereinabove, in the Suit there is no challenge to the execution of the Will by the testator. The only challenge is to the status of the property and the rights of the testator to bequeath the same. This is not the subject matter of the probate petition and the learned Court has rightly deleted the issue with respect to the same by its order dated 07.03.2020.In view of the above, I find no merit in the present petition and the same is dismissed.

IN THE HIGH COURT OF DELHI

TR. P. (C.) 161/2019 and CM No. 49960/2019

Decided On: 12.03.2020

 Amiteshwar Singh  Vs.  Kamal Nain

Hon'ble Judges/Coram:

Navin Chawla, J.

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Whether it is mandatory for charity commissioner to hear public trust prior to grant of consent for filing suit against trust?

 Apart from the mandate of the provisions of Section 51 of the Act of 1950 and the proviso below Sub-Rule (3) of Rule 27 of the Rules of 1951, the elementary principle of audi alteram partem also casts an obligation on the Authority under the Act of 1950 to hear the party against whom civil action is proposed. If the submission made on behalf of respondent Nos. 1 and 2, that notice to the proposed defendant and opportunity of hearing to the proposed defendant is not contemplated by the provisions of Section 51 of the Act of 1950 and proviso below Sub-Rule (3) of Rule 27 of the Rules of 1951 is accepted, it would amount to misreading the provisions and causing infraction of right of the affected party guaranteed by principles of natural justice.

8. In the facts of the case, I find that the consent granted by the Assistant Charity Commissioner under Section 51 of the Act of 1950 to respondent Nos. 1 and 2 to file civil suit against the petitioner-Society, without giving notice and without granting hearing to the petitioner-Society, is illegal and unsustainable in law.

9. Learned Advocate for respondent Nos. 1 and 2 submitted that after grant of consent, civil suit is filed and the petitioner-Society has submitted to the jurisdiction of the civil Court and participated in the proceedings and at this stage, hearing on application for temporary injunction is going on. In my view, the filing of civil suit will not legalize the illegality committed by the Assistant Charity Commissioner while granting sanction for filing of the civil suit. The civil suit filed against petitioner-Society could not have been filed without sanction by the Assistant Charity Commissioner. Thus, legal sanction for filing the civil suit is sine qua non and if the foundation i.e. sanction itself goes, the civil suit also has to go.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1269/2019

Decided On: 03.07.2019

 Shri Shivaji Shikshan Sanstha Vs.  Rajiv and Ors.

Hon'ble Judges/Coram:

Z.A. Haq, J.

Citation: 2020(1) MHLJ 345

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Whether prosecution for cheating can be quashed if civil suit and prosecution for dishonour of cheque is pending?

Mere filing of the suits for recovery of

the money and complaint filed under Section 138 of the N.I.

Act by itself is no ground to quash the proceedings in the

complaints filed by the appellant herein. When cheating and

criminal conspiracy are alleged against the accused, for

advancing a huge sum of Rs.9 crores, it is a matter which is

to be tried, but at the same time the High Court has entered

into the disputed area, at the stage of considering the

petitions filed under Section 482, Cr.P.C. It is fairly

well settled that power under Section 482 Cr.P.C. is to be

exercised sparingly when the case is not made out for the

offences alleged on the reading of the complaint itself or

in cases where such complaint is filed by way of abuse of

the process. Whether any Schedules were appended to the

agreement or not, a finding is required to be recorded after

full fledged trial. Further, as the contract is for the

purpose of procuring the land, as such the same is of civil

nature, as held by the High Court, is also no ground for

quashing. Though the contract is of civil nature, if there

is an element of cheating and fraud it is always open for a

party in a contract, to prosecute the other side for the

offences alleged. Equally, mere filing of a suit or

complaint filed under Section 138 of the N.I. Act, 1881 by

itself is no ground to quash the proceedings. While

considering the petition under Section 482 of Cr.P.C., we

are of the view that the High Court also committed an error

that there is a novation of the contract in view of the

subsequent agreement entered into on 08.11.2012. Whether

there is novation of contract or not and the effect of such

entering into the contract is a matter which is required to

be considered only after trial but not at the stage of

considering the application under Section 482, Cr.P.C.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1573-1575 OF 2019

Dr. Lakshman  Vs The State of Karnataka 

R. Subhash Reddy, J.

Dated:October 17, 2019.

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Whether application for revocation of probate should be tried as civil suit?

 We are of the considered view that an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or after recording evidence. The application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by recording such evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove the contentions of the applicant. In that situation, based upon the given facts situation, it will be for the Court to dispose it of either summarily or after giving opportunity to both the parties to adduce evidence and consideration thereof. Under these circumstances, it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as a contemplated under Section 295 of the Act. If the contention of Shri Puri merits acceptance, then any proceedings under the application to revoke the probate or letter of administration should be treated as a suit: the applicant cannot prove the will and at the same time cannot contend that the will was not validly executed. Therefore, it would be self contradictory to adopt such a procedure. Accordingly, we are of the view that the procedure required under Section 295 need not be adopted for disposal of the application filed under Section 263 for revocation of the probate or the letter of administration. It would be treated as miscellaneous application and disposed of as indicated earlier according to the given fact situation. In fact, the Bombay High Court came to consider the question, not directly on this issue but in an analogous situation in Narbheram Jivaram Purohit vs. Jevallabh Harijivan, [MANU/MH/0198/1932 : Vol. XXXV (1933) BLR 998]. Therein, the learned single Judge had held that the proper procedure for revocation of probate granted by the High Court is by way of a petition filed in the testamentary and intestate jurisdiction of the Court, and not by way of suit in its Ordinary Original Civil Jurisdiction. In other words, the Court indicated that it need not be treated as a suit on the original side of the Court but it could be disposed of as an application independent of the suit. Thus we hold that the High Court was clearly in error in reaching the conclusion that it should be treated as a suit and disposed of under Section 295."

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 4807 of 2018

Decided On: 07.03.2019

 Harjit Singh Vs.   Paramjitsingh

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2019(5) MHLJ 76

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Whether civil suit is maintainable to challenge existence or validity of arbitration agreement?

 In the Judgment of this Court, in the case of
Kvaerner Cementation India Limited V. Bajranglal
Agarwal and Another1, this Court has examined the
similar issue and held that any objection with respect
to existence or validity of the arbitration agreement,
can be raised only by way of an application under
Section 16 of the Act and Civil Court cannot have
jurisdiction to go into such question.
14. Having regard to aforesaid judgment of this Court
and various communications between the parties, we are
in agreement with the submission made by the learned
senior counsel for the appellant that, if the first
respondent wants to raise an objection with regard to
existence or validity of the arbitration agreement, it
is open for the first respondent to move an application
before the arbitrator, but with such plea, he cannot
maintain a suit for declaration and injunction. Though
the Trial Court rightly rejected the interim injunction
sought for by the first respondent, the same is
erroneously reversed by the learned Additional District
Judge and such order is confirmed by the High Court, by
the impugned order.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6605 OF 2019

National Aluminium Company Limited Vs  Subhash Infra EngineersPvt. Ltd. 

R. Subhash Reddy, J.
Dated:August 23, 2019

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